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The Intellectual Foundations of Political Economy

Early American Political Economy

"Vices of the Political System of the United States"

and letter to Edmund Pendleton

James Madison

February 24, 1787

1. Failure of the states to comply with the constitutional requisitions. This evil
has been so fully experienced both during the war and since the peace, results so
naturally from the number and independent authority of the States and has been so
uniformly exemplified in every similar Confederacy, that it may be considered as not
less radically and permanently inherent in than it is fatal to the object of the present
system.

2. Encroachments by the States on the federal authority. Examples of this are numerous
and repetitions may be foreseen in almost every case where any favorite object of
a State shall present a temptation. Among these examples are the wars and treaties
of Georgia with the Indians. The unlicensed compacts between Virginia and Maryland,
and between Pennsylvania & New Jersey - the troops raised and to be kept up by Massachusetts.

3. Violations of the law of nations and of treaties. From the number of Legislatures,
the sphere of life from which most of their members are taken, and the circumstances
under which their legislative business is carried on, irregularities of this kind
must frequently happen. Accordingly not a year has passed without instances of them
in some one or other of the States. The Treaty of peace - the treaty with France -
the treaty with Holland have each been violated. The causes of these irregularities
must necessarily produce frequent violations of the law of nations in other respects.

As yet foreign powers have not been rigorous in animadverting on us. This moderation,
however cannot be mistaken for a permanent partiality to our faults, or a permanent
security against those disputes with other nations, which being among the greatest
of public calamities, it ought to be least in the power of any part of the community
to bring on the whole.

4. Trespasses of the States on the rights of each other. These are alarming symptoms,
and may be daily apprehended as we are admonished by daily experience. See the law
of Virginia restricting foreign vessels to certain ports - of Maryland in favor of
vessels belonging to her "own citizens - of New York in favor of the same -

Paper money, instalments of debts, occlusion of Courts, making property a legal tender,
may likewise be deemed aggressions on the rights of other States. As the Citizens
of every State aggregately taken stand more or less in the relation of Creditors or
debtors, to the Citizens of every other State, Acts of the debtor State in favor of
debtors, affect the Creditor State, in the same manner as they do its own citizens
who are relatively creditors towards other citizens. This remark may be extended to
foreign nations. If the exclusive regulation of the value and alloy of coin was properly
delegated to the federal authority, the policy of it equally requires a controul on
the States in the cases above mentioned. It must have been meant

to preserve uniformity in the circulating medium throughout the nation.

to prevent those frauds on the citizens of other States, and the subjects of foreign
powers, which might disturb the tranquility at home, or involve the Union in foreign
contests.

The practice of many States in restricting the commercial intercourse with other States,
and putting their productions and manufacturers on the same footing with those of
foreign nations, though not contrary to the federal articles, is certainly adverse
to the spirit of the Union, and tends to beget retaliating regulations, not less expensive
and vexatious in themselves than they are destructive of the general harmony.

5. Want of concert in matters where common interest requires it. This defect is strongly
illustrated in the state of our commercial affairs. How much has the national dignity,
interest, and revenue, suffered from this cause? Instances of inferiour moment are
the want of uniformity in the laws concerning naturalization & literary property;
or provision for national seminaries, for grants of incorporation for national purposes,
for canals and other works of general utility, which may at present be defeated by
the perverseness of particular States whose concurrence is necessary.

6. Want of guaranty to the States of their constitutions & laws against internal violence.
The confederation is silent on this point and therefore by the second article the
hands of the federal authority are tied. According to Republican Theory, Right and
power being both vested in the majority, are held to be synonimous. According to fact
and experience a minority may in an appeal to force, be an overmatch for the majority.

1. if the minority happen to include all such as possess the skill and habits of military
life, & such as possess the great pecuniary resources, one-third only may conquer
the remaining two-thirds.

2. one-third of those who participate in the choice of the rulers, may be rendered
a majority by the accession of those whose poverty excludes them from a right of suffrage,
and who for obvious reasons will be more likely to join the standard of sedition than
that of the established Government.

3. where slavery exists the republican Theory becomes still more fallacious.

7. Want of sanction to the laws, and of coercion in the government of the confederacy.
A sanction is essential to the idea of law, as coercion is to that of Government.
The federal system being destitute of both, wants the great vital principles of a
Political Constitution. Under the form of such constitution, it is in fact nothing
more than a treaty of amity of commerce and of alliance, between independent and Sovereign
States. From what cause could so fatal an omission have happened in the Articles of
Confederation? from a mistaken confidence that the justice, the good faith, the honor,
the sound policy, of the several legislative assemblies would render superfluous any
appeal to the ordinary motives by which the laws secure the obedience of individuals:
a confidence which does honor to the enthusiastic virtue of the compilers, as much
as the inexperience of the crisis apologizes for their errors. The time which has
since elapsed has had the double effect, of increasing the light and tempering the
warmth, with which the arduous work may be revised. It is no longer doubted that a
unanimous and punctual obedience of 13 independent bodies, to the acts of the federal
Government ought not to be calculated on. Even during the war, when external danger
supplied in some degree the defect of legal & coercive sanctions, how imperfectly
did the States fulfill their obligations to the Union? In time of peace, we see already
what is to be expected. How indeed could it be otherwise? In the first place, Every
general act of the Union must necessarily bear unequally hard on some particular member
or members of it, secondly the partiality of the members to their own interests and
rights, a partiality which will be fostered by the courtiers of popularity, will naturally
exaggerate the inequality where it exists, and even suspect it where it has no existence,
thirdly a distrust of the voluntary compliance of each other may prevent the compliance
of any, although it should be the latent disposition of all. Here are causes & pretexts
which will never fail to render federal measures abortive. If the laws of the States
were merely recommendatory to their citizens, or if they were to be rejudged by County
authorities, what security, what probability would exist, that they would be carried
into execution? Is the security or probability greater in favor of the acts of Congress
which depending for their execution on the will of the State legislatures, which are
tho' nominally authoritative, in fact recommendatory only?

8. Want of ratification by the people of the articles of Confederation. In some of
the States the Confederation is recognized by, and forms a part of the Constitution.
In others however it has received no other sanction than that of the legislative authority.
From this defect two evils result:

1. Whenever a law of a State happens to be repugnant to an act of Congress, particularly
when the latter is of posterior date to the former, it will be at least questionable
whether the latter must not prevail; and as the question must be decided by the Tribunals
of the State, they will be most likely to lean on the side of the State.

2. As far as the union of the States is to be regarded as a league of sovereign powers,
and not as a political Constitution by virtue of which they are become one sovereign
power, so far it seems to follow from the doctrine of compacts, that a breach of any
of the Articles of the Confederation by any of the parties to it, absolves the other
parties from their respective Obligations, and gives them a right if they chuse to
exert it, or dissolving the Union altogether.

9. Multiplicity of laws in the several States. In developing the evils which viciate
the political system of the U.S., it is proper to include those which are found within
the States individually, as well as those which directly affect the States collectively,
since the former class have an indirect influence on the general malady and must not
be overlooked in forming a compleat remedy. Among the evils then of our situation
may well be ranked the multiplicity of laws from which no State is exempt. As far
as laws are necessary to mark with precision the duties of those who are to obey them,
and to take from those who are to administer them a discretion which might be abused,
their number is the price of liberty. As far as laws exceed this limit, they are a
nuisance; a nuisance of the most pestilent kind. Try the Codes of the several States
by this test, and what a luxuriancy of legislation do they present. The short period
of independency has filled as many pages as the century which preceded it. Every year,
almost every session, adds a new volume. This may be the effect in part, but it can
only be in part, of the situation in which the revolution has placed us. A review
of the several Codes will shew that every necessary and useful part of the least voluminous
of them might be compressed into one tenth of the compass, and at the same time be
rendered ten fold as perspicuous.

10. Mutability of the laws of the States. This evil is intimately connected with the
former yet deserves a distinct notice, as it emphatically denotes a vicious legislation.
We daily see laws repealed or superseded, before any trial can have been made of their
merits, and even before a knowledge of them can have reached the remoter districts
within which they were to operate. In the regulations of trade this instability becomes
a snare not only to our citizens, but to foreigners also.

11. Injustice of the laws of the States. If the multiplicity and mutability of laws
prove a want of wisdom, their injustice betrays a defect still more alarming: more
alarming not merely because it is a greater evil in itself; but because it brings
more into question the fundamental principle of republican Government, that the majority
who rule in such governments are the safest Guardians both of public Good and private
rights. To what causes is this evil to be ascribed?

These causes lie 1. in the Representative bodies. 2. in the people themselves.

1. Representative appointments are sought from 3 motives. 1. ambition. 2. personal
interest. 3. public good. Unhappily the two first are proved by experience to be the
most prevalent. Hence the candidates who feel them, particularly, the second, are
most industrious, and most successful in pursuing their object: and forming often
a majority in the legislative Councils, with interested views, contrary to the interest
and views of their constituents, join in a perfidious sacrifice of the latter to the
former. A succeeding election it might be supposed, would displace the offenders,
and repair the mischief. But how easily are base and selfish measures, masked by pretexts
of public good and apparent expediency? How frequently will a repetition of the same
arts and industry which succeeded in the first instance, again prevail on the unwary
to misplace their confidence?

How frequently too will the honest but unenlightened representative be the dupe of
a favorite leader, veiling his selfish views under the professions of public good,
and varnishing his sophistical arguments with the glowing colours of popular eloquence?

2. A still more fatal if not more frequent cause, lies among the people themselves.
All civilized societies are divided into different interests and factions, as they
happen to be creditors or debtors - rich or poor - husbandmen, merchants or manufacturers
- members of different religious sects - followers of different political leaders
- inhabitants of different districts - owners of different kinds of property &c &c.
In republican Government the majority however composed ultimately give the law. Whenever
therefore an apparent interest or common passion unites a majority what is to restrain
them from unjust violations of the rights and interests of the minority, or of individuals?
Three motives only 1. a prudent regard to their own good as involved in the general
and permanent good of the community. This consideration although of decisive weight
in itself, is found by experience to be too often unheeded. It is often forgotten,
by nations as well as by individuals, that honesty is the best policy. 2dly. respect
for character. However strong this motive may be in individuals, it is considered
as very insufficient to restrain them from injustice. In a multitude its efficacy
is diminished in proportion to the number which is to share the praise or the blame.
Besides, as it has reference to public opinion, which within a particular Society,
is the opinion of the majority, the standard is fixed by those whose conduct is to
be measured by it. The public opinion without the Society will be little respected
by the people at large of any Country. Individuals of extended views, and of national
pride, may bring the public proceedings to this standard, but the example will never
be followed by the multitude. Is it to be imagined that an ordinary citizen or even
Assemblyman of Rhode Island in estimating the policy of paper money, ever considered
or cared, in what light the measure would be viewed in France or Holland; or even
in Massachusetts or Connecticut? It was a sufficient temptation to both that it was
for their interest; it was a sufficient sanction to the latter that it was popular
in the State; to the former, that it was so in the neighbourhood. 3dly. will Religion
the only remaining motive be a sufficient restraint? It is not pretended to be such
on men individually considered. Will its effects be greater on them considered in
an aggregate view? quite the reverse. The conduct of every popular assembly acting
on oath, the strongest of religious ties, proves that individuals join without remorse
in acts, against which their consciences would revolt if proposed to them under the
like sanction, separately in their closets. When indeed Religion is kindled into enthusiasm,
its force like that of other passions, is increased by the sympathy of a multitude.
But enthusiasm is only a temporary state of religion, and while it lasts will hardly
be seen with pleasure at the helm of Government. Besides as religion in its coolest
state is not infallible, it may become a motive to oppression as well as a restraint
from injustice. Place three individuals in a situation wherein the interest of each
depends on the voice of the others; and give to two of them an interest opposed to
the rights of the third. Will the latter be secure? The prudence of every man would
shun the danger. The rules & forms of justice suppose & guard against it. Will two
thousand in a like situation be less likely to encroach on the rights of one thousand?
The contrary is witnessed by the notorious factions & oppressions which take place
in corporate towns limited as the opportunities are, and in little republics when
uncontrouled by apprehensions of external danger. If an enlargement of the sphere
is found to lessen the insecurity of private rights, it is not because the impulse
of a common interest or passion is less predominant in this case with the majority;
but because a common interest or passion is less apt to be felt and the requisite
combinations less easy to be formed by a great than by a small number. The Society
becomes broken into a greater variety of interests, of pursuits of passions, which
check each other, while those who may feel a common sentiment have less opportunity
of communication and concert. It may be inferred that the inconveniences of popular
States, contrary to the prevailing Theory, are in proportion not to the extent, but
to the narrowness of their limits.

The great desideratum in Government is such a modification of the sovereignty as will
render it sufficiently neutral between the different interests and factions, to controul
one part of the society form invading the rights of another, and at the same time
sufficiently controuled itself, from setting up an interest adverse to that of the
whole Society. In absolute Monarchies the prince is sufficiently neutral towards his
subjects, but frequently sacrifices their happiness to his ambition or his avarice.
In small Republics, the sovereign will is sufficiently controuled from such a sacrifice
of the entire Society, but is not sufficiently neutral towards the parts composing
it. As a limited monarchy tempers the evils of an absolute one; so an extensive Republic
meliorates the administration of a small Republic.

An auxiliary desideratum for the melioration of the Republican form is such a process
of elections as will most certainly extract from the mass of the society the purest
and noblest characters which it contains; such as will at once feel most strongly
the proper motives to pursue the end of their appointment, and be most capable to
devise the proper means of attaining it.